Insanity Defence: International Laws add to the Confusion – II

Ashoka examines the huge disparities in the interpretation of insanity and insanity defence. In line with the rewording of the insanity defence, the verdict would be called that of mental disorder verdict in order to avoid the stigma of the insanity label. The disparities add to the confusion, making the issue murkier, as we compare the interpretations by various countries. Here’s the second part of the three-part in-depth research on the insanity defence, exclusively in Different Truths.

In 1989, after the Draft Criminal Code of 1985 and the Criminal Law Revision Committee of 1980, the Law Commission looked again at the insanity defence and automatism. Rewording insanity into “Mental disorder, severe mental illness, and severe mental handicap”, and relying heavily on medical concepts, the Law Commission intended to cover epilepsy as much as diabetes (whether hypo or hyper) or intoxication. In line with the rewording of the insanity defence, the verdict would be called that of mental disorder verdict in order to avoid the stigma of the insanity label.

Comparisons with other legal systems allow gaining perspective on English law (A), but also force to reflect on the comparative process itself.

Scotland: Not fully identical but working along the same lines as English law. No reform so far, but a review of the issues was made, in 2004, by the Scottish Law Commission. Conclusion: quite in the similar line as the English Law Commission with a rewording of insanity in “mental disorder” in line with the civil law (not continental law, but damages & remedies). Scotland inspired the defence of diminished responsibility in England.

Canada: The English courts’ reasoning was called in question nearly 15 years ago in Canada. The Supreme Court of Canada in Parks (1993) concluded that sleepwalking is not a disease of the mind. This is a rejection of the external/internal factors as expressed in Quick.

The US: Some states chose to suppress the defence entirely, but with issues concerning mens rea (distortion of the concept). Note that we have not enquired about Louisiana, which has a mixed legal system.

Like the US, Sweden chose to suppress the defence in its outcome of excluding criminal liability. Insanity (mental disorder) calls for extenuating circumstances, which translate in no imprisonment and maybe no criminal sanction at all. Sweden is so far reviewing its decision with the view to reintroduce the defence because some mentally ill people seem to escape the net of mental health measures.

France:French law underwent reform, in 1992, with the promulgation of the new criminal code which replaced the 1810 Napoleonic code. The first modification was the change of wording. France evolved from “dementia” in the 1800’s to “psychological or neuropsychological disorder” or “trouble psychique and neuropsychique….” Yet, it must be noted that the change of wording was not really a change in substance: the courts had adopted a similar view and the reform was more a recognition of the courts’ practice than the adoption of a new line of thinking. The second modification was much more significant. The “insanity” defence is now twofold: either a complete exclusion of liability because the mental disorder completely or substantially affects the person’s capacity; or liability is acknowledged, because the person is only partially incapable, and thus extenuating circumstances are available at sentencing. Lastly, French law has never known a defence of automatism, nor of diminished responsibility.

The difference is staggering and forces one to look at the legal systems at stake here. For if English law adopted diminished responsibility, it was to avoid the stringent outcome of an insanity defence should it be accepted by the jury. Indeed in 1957, the only outcome when a person was insane was a committal for disposal, in other words, detention in a mental hospital whatever the situation. By contrast, in French law, the insanity defence never meant automatic detention. Certainly, the so-called administrative detention was available, but it was not automatic. Thus, there was no need to look for a different outcome, thus for a different defence. In other words, it was procedural constraints that created the defence of diminished responsibility. The same can be said for automatism. The defence was born out of the practice of the juries, who wanted to acknowledge a mental disorder but did not feel that the defendant deserves detention in hospital. It is only later on that automatism evolved around the internal/external criterion.

Thus, for both defences of automatism and diminished responsibility, it was the too severe outcome of the insanity defence that led to opt for a different way to manage a mental disorder. The procedural constraint was not tackled with a reform in procedural law, but with a reform of a substantive law. In other words, the strategy of (philosophical) choice on which rests the insanity defence (defect of reason cannot call for criminal liability) was partially muddled with non-philosophical constraints.

The development of the insanity rule is an interesting case of gradual rational sophistication of an area of law as it absorbs the inner morality of law. It illustrates how, absent any fixed formulation, the principles of law can evolve rationally. The development of the standard used in the judge’s instructions to the jury shows how the inner morality of law shapes its principles. In dealing with real cases the judges try to work out a conception that is coherent. The evolution is slowed (and made nonlinear) by the fallibility of judges. Sometimes later formulations are worse from the point of view of the inner morality than are earlier ones.

Our intuition is that we should be punished only for actions for which we are responsible. Some argue that if determinism is true, no one has free will so no one is responsible (blameable or punishable) for anything they do. A Kantian justification of punishment usually requires an assumption of free will, but a utilitarian justification can work on the assumption that, even if our acts are determined, punishment will deter crime. Punishment works precisely because of determinism.

The threat of harm becomes one of the determining conditions when people are aware of it. So all we need is that acts are determined by the awareness of future probable consequences. This suggests (as does the Kantian inner morality) that punishment can only be justified for rational or free agents.

In effect, we are arguing that the insane do not have free will. Hence, we should not punish them. The question becomes how to define ‘madness’ or ‘insanity’ in the proper way. Justice requires that punishment should be restricted to those able to plan, predict, and anticipate.

So the traditional rule (The McNaughton rule) requires that to use the insanity defence successfully the defendant has to show that (a) he has a mental defect or disease that (b) makes him incapable of knowing that the act was wrong. The McNaughton rule focuses (like much of Western philosophy) on knowledge and delusion. The first problem is deciding whether to say the person did not know the act was wrong or illegal. This poses a problem because few of us know all the laws – despite the courts’ presumption (remember, ignorance of the law is no excuse). The negligence rule makes us responsible as long as a reasonable person could have known. So the rule has usually been given in terms of the general capacity to know whether the act was right and wrong with no qualification. The legal/moral distinction doesn’t figure too often since the acts usually are violations of both.

The original version of the McNaughton rule focused on the notion of a delusion (the paradigm mental disease back then). If you were under a delusion such that if it were true, your action would not have been a crime, then you are not guilty (by reason of insanity). This leads to some troublesome hypothetical cases. Suppose one person has a delusion that he is God or Moses killing some evil representative of the devil. Presumably, the defendant is innocent since his delusion caused him to think his act was right. Gross compares this to the example of someone who has a delusion that they are Bluebeard (a famous pirate) killing an Englishman in France or Jack the Ripper (a famous criminal) killing an Englishman in England. If you had the former delusion you would be innocent, if you had the latter you will be guilty. Yet, it seems wrong to punish one of them since an identical illness caused each delusion and both delusions equally caused their acts in the same way. The defendant surely lacks control over the content of his controlling delusion.

The rule led to other practical problems as psychological knowledge grew. We became aware of “compulsive” disorders. One particularly relevant example is kleptomania – the compulsion to steal things even if you don’t need or want them. The person suffering from kleptomania in fact, knows what he does is wrong but he can’t control his behaviour. So, a modified version of the McNaughton rule included an irresistible impulse condition.

The Durham rule was an attempt to simplify this condition-laden rule by boiling it down to its core. It focused on causation. All we had to ask was whether the defendant had a mental defect that caused or produced the behaviour. The content or type of mental defect was not important. Although seemingly sensible, the result of this reform was a disappointment. First, it led to an extreme reliance on psychiatrists as witnesses. Their influence seemed disproportionate to the reliability of the “science.” If you could get a psychologist to say you were “sick” you could go free. Psychologists began to invent new psychological diseases every month.

They even began to argue for an even looser formulation. It required only showing that the accused was mentally ill or abnormal at the time of the act. It was not necessary to say that the illness had even caused the act. If a psychiatrist could be found who says (or says more convincingly) that the defendant was mentally abnormal at the time of the crime, that is all the jury has to decide on. The jury was not to employ its common-sense notions of moral standards of responsibility. The courts had effectively handed the criterion of legal responsibility over to a widely suspect profession.

The insanity defence is not justified by simple compassion for people who are sick (otherwise, having the flu at the time of the act would excuse someone). It must reflect a diminished natural capacity to do the things that justify using a rule of law to governing humans. It is also not the case that we are punishing a person for being sick. We are punishing them for their conduct, not their disease.

Most societies are concerned with mental illness and, in fact, formally take it into account in their legal systems in at least two important ways. First, mental illness is generally considered a significant factor in assessing the criminal responsibility of persons charged with committing a crime and in determining the proper disposition of mentally ill offenders. Second, the state, in certain situations, will deprive the mentally ill of their freedom and place them involuntarily in mental health facilities. Observing how selected countries in western and Eastern Europe take mental illness into account on these important questions provides an invaluable opportunity to learn how different societies solve common problems and also to determine if there might be better ways of addressing those problems within our own society.

There are, of course, several perspectives from which one could analyse the insanity defence and involuntary civil commitment in foreign legal systems. However, the comparative perspective on which this article is based will focus on: (a) how foreign legal systems formulate and administer the insanity defence; (b) how the power of the state is defined to civilly commit mentally ill persons; (c) who makes the important decisions and when and how they are made; and, (d) what happens to offenders who are considered mentally ill and to others who are considered mentally ill and suitable for involuntary commitment.

In order to provide a basis of comparison and contrast, it is useful to set forth very generally the manner in which US legal system addresses these problems. In the United States, most states make the defence of insanity available to persons charged with criminal offenses. There are two primary tests used to formulate the defence: the McNaughton test and the A.L.I. test.” Both tests require that the defendant must have been mentally ill at the time of the offense. The McNaughton defence is satisfied if in addition to being mentally ill at the time of the offense, the defendant did not know the nature or quality of the act or that it was wrong. This test focuses on the absence of cognitive ability as a result of mental illness. It is premised on the notion that knowledge is necessary for an individual choice. Therefore, a mentally ill defendant who did not possess requisite knowledge concerning his behaviour or its criminality is not a fit subject for retribution, nor is his conduct deterable by the threat of punishment.

The A.L.I. test also requires that the defendant be mentally ill at the time of the alleged defence. In addition, it provides that if, as a result of such illness, a defendant’s capacity either to know that his conduct was wrong or to conform his conduct to the requirements of the law was substantially impaired, he may then be excused from criminal responsibility. This test permits substantial impairment either in cognitive or volitional control to exculpate a criminal defendant. The philosophic premise of this formulation is that a defendant who did not know, or could not control himself even if he did know, did not choose to do wrong. Both tests require not only that an individual was mentally ill at the time of the offense, but that the illness generated a specific type of mental incapacity which indicated that a necessary condition for personal responsibility was not present. Given such psychological impairments, most purposes of punishment would not be served by punishing this particular defendant. ‘Since the presence or absence of mental illness is essential to this inquiry into criminal responsibility, our system relies heavily on the expert opinion of mental health specialists. In most cases, psychiatrists or psychologists will, at the request of either the prosecution or the defence, evaluate the defendant prior to trial, and at trial give their professional expert opinion as to the mental health of the defendant at the time of the crime. As with all crucial facts relevant to criminal responsibility, however, our adversarial, due process model of criminal justice leaves the task of ultimate fact-finding to the jury (or to the judge in some cases). Thus, experts give their opinions before a jury in a court of law where their testimony is subject to rigorous confrontation and extensive cross-examination by legal counsel for the government and for the defendant. Frequently, their opinions are contradictory and manifest pronounced disagreement among themselves.

If a criminal defendant is found not guilty by reason of insanity, he frequently is sent to a mental health institution for further evaluation to ascertain whether he is still mentally ill and dangerous. He may be released from such an institution by the medical staff whenever it is determined that either of these conditions no longer exist. Increasingly, though, the approval of a court is also needed. Judicial review of continued confinement in a mental health institution is almost always available to such an individual.”

(To be continued next week)

(Information relied upon is based on Robert Bluglass’s Hewitt Oration that I attended)

Ashoka Jahnavi Prasad is a physician /psychiatrist holding doctorates in pharmacology, history and philosophy plus a higher doctorate. He is also a qualified barrister and geneticist. He is a regular columnist in several newspapers, has published over 100 books and has been described by the Cambridge News as the 'most educationally qualified in the world'.

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